Originally published in [2001] International Fisheries Bulletin No. 13

Report: First Session of the Preparatory Conference for the Establishment of the Commission on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific

In September 2000, member states of the Pacific Islands Forum together with other coastal states of the Pacific and distant water fishing nations adopted a convention, known for short as the Western and Central Pacific Tuna Convention. Under the convention, a Commission will be established for the conservation and management of highly migratory fish stocks (principally tuna) in the western and central Pacific. The conference establishing this Commission also mandated participants to convene a preparatory conference within six to nine months (that is, between April and July 2001).

The tasks of this preparatory conference or Prepcon (which will continue until the convention enters into force) are to lay the groundwork for the Commission and to ensure that no vacuum exists in the period between adoption of the convention and its entry into force. Entry into force is expected to take about three years. Specifically the Prepcon is to establish the organizational and financial framework for the new Commission and its subsidiary bodies, as well as facilitate the future work of the Commission. It is to begin the process of collecting and analyzing data on status of the fish stocks, and if necessary recommend conservation and management measures. An interim secretariat might also be established to support these tasks.

The first session of the Prepcon was convened by New Zealand, the depositary of the convention, in Christchurch from 23 to 28 April, 2001. It was open to all states and entities that negotiated the convention. At the time of the first Prepcon, 16 out of 25 state parties had signed the convention, while Chinese Taipei had signed an arrangement for its participation as a fishing entity. Three ratifications had also been received (from Fiji, Samoa and the Marshall Islands). Requests for full participation in the Prepcon were received from the European Union, Mexico and Peru, although only the EU was present in Christchurch as an observer. The Forum Fisheries Committee (FFC) convened a one-day meeting immediately prior to the Prepcon and it continued to caucus throughout the week-long conference.

The conference chose retired New Zealand diplomat, Mr Michael Powles, as chairman of the Prepcon.

It was anticipated that most attention at this first session of the Prepcon would be devoted to preliminary legal and administrative issues. A paper submitted by New Zealand identified three key areas where decisions needed to be made. These were funding arrangements for future Prepcons, interim secretariat arrangements for future Prepcons, and the timing and location of the next Prepcon. In addition, New Zealand circulated background papers in order to inform discussion at the Prepcon on the following issues: draft rules of procedure for the Prepcon, draft rules of procedure for the Commission, draft rules and regulations concerning financial management and internal administration of the Commission, provision of interim scientific advice, draft organizational structure of the Commission, draft budget for the first financial period of the Commission, draft scheme of contributions to the budget, and draft provisional agenda for the first meeting of the Commission.

It was agreed early on in the Prepcon that consideration of some of these issues was premature and should be deferred to later sessions. These included draft financial regulations for the Commission and scheme of contributions, as well as the agenda for the first meeting of the Commission. Considerations of the draft budget for the Commission also could not be finalized until other decisions had been made. Most crucial is the location of the Commission headquarters. At the time of the first Prepcon, no clear candidate had been identified. The Forum Fisheries Committee reiterated in a statement to the Prepcon its intention to put forward one of its members as a proposed location for the Commission. However, the FFC has yet to make a choice on its preferred candidate.

In order to facilitate the work of the conference, the Chairman of the Prepcon convened working groups and informal plenary meetings to focus on key issues. Working groups were established to cover organizational and budget matters (chaired by Papua New Guinea) and scientific structure and advice (chaired by Australia with China as vice Chair). An informal plenary was convened to discuss draft rules of procedure for the Commission. The two working groups will remain in place although their tasks may evolve throughout the Prepcon process.

These may be divided into two categories: issues pertaining to the operation of the Prepcon and issues relating to the convention itself, in particular questions of participation by states or entities who have either refused to sign the convention or are currently not eligible to sign.

In the first category, while there was broad agreement on the need for cost-effective and streamlined arrangements for the Prepcon, there were differences over the coverage and scope of the Prepcon’s work program. Distant water fishing nations (namely Korea, China and Chinese Taipei) were reluctant to engage in substantive discussions on the organizational aspects of the Commission. They also were against the broad and comprehensive terms of reference for the two working groups, preferring that these be confined to very preliminary and ‘basic’ tasks. These concerns reflected their long-standing preference for a much more limited Prepcon process than that mandated by the conference of September 2000. They remain opposed to the Prepcon considering or adopting recommendations for interim conservation and management measures. These concerns also reflect their on-going opposition to, or reservations about, the future role and powers of the Commission.

A related area of debate (although this was mainly indicated within the FFC rather than advanced in the Prepcon) was the issue of what kind of organization the Commission would be. Namely, would it be a regional organization affiliated to the Council for Regional Organizations in the Pacific (CROP) or be a United Nations-type international organization? Within the FFC there was some support for the Commission applying CROP standards to staff regulations, rather than UN standards on the grounds that this would be more cost effective. It would also confirm the Commission as belonging to the region. On the other hand, it was argued that it may be difficult to attract the best possible staff if CROP conditions applied. In addition, the new Commission is quite separate to the CROP organizations, and should be treated as such. Another issue was how far existing regional bodies (such the Secretariat of the Pacific Community and the Forum Fisheries Agency) should be contracted to carry out some of the key organizational functions of the Prepcon. Concerns in relation to this issue were that the regional bodies should not subsidize the work of the Commission (or Prepcon). Nor should they be distracted from their core functions of servicing and assisting member countries. The FFC agreed to undertake a study to clarify the future operations of the Commission and how these may be met by existing organizations.

A second and far more contentious area of debate related to the current convention and questions of participation by states and entities that have either refused to sign the convention or are unable to become contracting parties. In this category were the following issues: Japan’s refusal to attend Prepcon and its push to re-open parts of the convention; the French territories quest for voting rights and decision making powers in the Commission commensurate with their levels of political autonomy; and the European Union’s quest for full participation in Prepcon.

The issue of Japan’s participation was introduced into the Prepcon by a United States proposal to add a new agenda item titled ‘Mechanisms to promote participation’. As a major distant water fishing nation in the Pacific, Japan’s absence from the Prepcon and its refusal to sign the convention were viewed with deep concern by the US. Among other things, it was suggested that there would be limited domestic support for the convention in the US if other DWFNs were not party to it. Nor does the US wish to carry the financial burden of the Commission (something which falls largely to the fishing nations). In proposing this agenda item to the Prepcon plenary, the US received support from Philippines, China, Taiwan (Chinese Taipei), Korea and Canada.

Prior to the first session of Prepcon, the US had sought support for its proposed agenda item from FFC member states through demarches. US representatives to Prepcon met subsequently with the FFC as a group in Christchurch. The US proposal was to hold a separate meeting with Japan (and Korea who also voted against the convention last September) sometime prior to the next Prepcon session to discuss issues of concern to these two countries. According to the US, this meeting would be an opportunity to strengthen the position of ‘moderates’ in Japan who want Japan to support the convention but have been discredited by ‘hard-liners’ who have swayed political opinion against the convention. The US suggested that while an ‘absolute principle’ of such a meeting would be not to reopen the convention, it was possible to engage in discussions on issues where further elaboration could be provided and Japan’s concerns accommodated. These included boarding and inspection and the Northern Committee. Other issues of concern to Japan (decision making, dispute settlement and vessel monitoring system) could be discussed with a view to reassuring Japan that its interests would be protected.

In considering the US proposal, FFC members expressed a number of reservations. One major reservation was that the invitation to Japan to engage in further discussion may be construed by Japan as an opportunity to re-open the convention for further negotiation. It was noted that a number of Pacific island countries had been invited to Tokyo earlier this year for consultations on the convention. However this failed to resolve differences between the two sides. Nor was Japan willing to accept that the convention could not be re-opened. As one FFC representative stated: ‘How much clearer can we be?’

Other concerns voiced within FFC were that the proposed meeting with Japan could overshadow the next Prepcon session if it were held in conjunction with that session. It could distract participants from the tasks that needed to be addressed within Prepcon. On the other hand, a separate meeting would have additional resource implications and be a financial burden on participants. It also risked creating a parallel process of dialogue that could undermine the Prepcon. FFC eventually agreed to support the US agenda item and resolution to hold a meeting with Japan sometime before the next Prepcon, but it tabled a statement setting out the ‘framework’ under which such a meeting would take place. It included the condition that the meeting be a one-off consultation and that the Chairperson of this meeting be selected by the Chair of Prepcon after consultation with all participants. FFC reaffirmed its position that ‘there be no re-opening or weakening of the final text of the convention or resolutions’ of the September 2000 conference.

On the participation of the French territories, the principal issue concerns their status as non-contracting parties, having rights to participate in the work of the Prepcon and Commission but not take part in the decision making of these bodies. France has maintained (along with French Polynesia, New Caledonia and Wallis and Futuna) that these territories should have powers within the Commission commensurate with their political autonomy. In other words, where they have full competency (such as managing their EEZs) they should also have voting or decision making rights. In areas where they do not have competency (such as law enforcement), France should exercise those rights on their behalf. In addressing the Prepcon, French and the territorial representatives gave notice that they may not engage in the Prepcon in future unless their concerns were taken into account. (France abstained from voting on the convention when it was adopted last September).

The principal opponent to the French territories’ participation along the lines described above is the US. It has argued that such provisions would be contrary to international law. An unstated concern relates to their own territories in the Pacific possibly seeking similar rights. FFC members generally support the inclusion of the French territories and the need to accommodate their evolving political relations with France. At the same time it was necessary for France ‘to come clean’ on precisely where the boundaries of competency lay between itself and its territories. New Zealand, as the depositary of the convention as well as having similar concerns as France with respect to its own territory of Tokelau, revealed that it had held discussions with France since the September conference. These focused on how rules of procedure for the Commission could be developed in such a way that took into account the territories’ interests.

New Zealand subsequently tabled a paper during informal plenary setting out principles and guidelines for rules of procedure governing territories’ participation in the Commission. This paper was supported by France who described it as a ‘good basis for drafting rules of procedure’ at the next session of Prepcon. The paper was also supported by New Caledonia and French Polynesia, although the latter claimed that it still fell short of two requirements: the right to block consensus and the right to vote. This would require further dialogue. The US reacted cautiously to the New Zealand paper, saying that while it brought the sides closer together, a territory needed to meet a ‘predetermined standard’ in order to vote or participate in decision making. A process for deciding when a territory had reached that standard still needed to be developed. It pledged to give further consideration to this issue inter-sessionally.

The final participation issue concerned the application by the European Union, Peru and Mexico for membership of the Prepcon. At present the EU and Mexico are observers, a status they were accorded in the negotiations of the convention. Peru had not previously been an observer. Neither Peru nor Mexico have direct fishing interests in the region, however a member of the EU (Spain) currently has a number of vessels fishing in the Kiribati EEZ. On this basis, the EU has sought full membership of the Prepcon. The principal obstacle to according membership to these applicants was the resolution passed at the conclusion of negotiations last September. This agreed not to admit new members until the convention entered into force. The reason for this was in order to limit the number of new actors (namely new fishing nations), who may vie for position in the region’s fisheries and further complicate the Prepcon process.

While there was some support for the EU (and for treating the EU separately to Peru and Mexico) there was concern that any change to the moratorium on new members would open up all other areas of the resolution for re-negotiation. In addition, it was not clear who the region would be dealing with: the EU or its member states. This echoed a long-standing concern (especially within the FFC) about issues of competency within the EU, since it was not a flag state like other participants. While Kiribati remained of the view that the EU should be admitted, other FFC members preferred to engage the EU in further dialogue and to use the Prepcon as a venue for clarifying the issues of EU membership. The first stage in this dialogue took place during the Prepcon, at an informal exchange of views between the FFC and the EU.

Main outcomes of Prepcon 1

The following is a summary of the key outcomes and resolutions of the first session of the Prepcon (with reference to the position and interests of the FFC group).

1. The same Chairman (from New Zealand) is likely to remain for at least the first stage of the Prepcon. This reflects the views of the FFC group, who prefer having a continuing Chairman rather than a rotating Chairman.
      
2. The next session of the Prepcon will be convened by Papua New Guinea and will take place in January or February 2002. Again this is in line with FFC preference to hold the meeting in a Pacific island state, although they remain open to a distant water fishing nation hosting a session. In addition, no inter-sessional meetings have been scheduled which reflects FFC concern about having to attend (and fund) too many meetings.
      
3. The Prepcon will aim to conclude its work within three years (although Prepcon itself will continue until the entry into force of the convention, which may take more than three years). The FFC had agreed that the Prepcon set targets for its various work programs.
      
4. An interim secretariat will be established to service future meetings of the Prepcon, with the Chairman of Prepcon to oversee the appointment and work of its staff. This interim secretariat will operate on the basis of ‘economy and efficiency’, and utilize where possible electronic means of communication. This decision is along the lines of a proposal made by New Zealand in a paper tabled at Prepcon and endorsed by the FFC.
       
5. A preparatory conference organizational fund is also established, to offset costs of hosting future sessions in developing member countries, as well as associated conference secretariat costs. This will be financed through voluntary contributions and administered by the Director of the FFA. Australia and New Zealand have each pledged $100,000 to this fund. This fund should assist FFC members planning to host future sessions of Prepcon, although there are some concerns about the scope of the fund, as well as the implications for FFA of administering it.
       
6. No decision was made on the Commission headquarters. However Forum member countries reiterated their position that they will support one Forum island state as the venue of the headquarters. No bids were officially made by other participants.
       
7. Prior to the next Prepcon (perhaps in the two days immediately before the session convenes) an informal meeting will take place to discuss issues of concern regarding participation in the Prepcon (namely Japanese participation). In agreeing to the resolution mandating the meeting, the FFC spelt out a number of conditions that will need to be met in order to ensure their participation. These cover the chairmanship of the meeting, the agenda, financing, timeframe and transmission of outcomes to the Prepcon.
       
8. No move was made to invite the EU into the Prepcon as a full member. Informal discussions with the EU will continue. However the FFC indicated that they would prefer EU observers to have a formal mandate from the European Council of Ministers before further consideration of their request for membership.
       
9. Working papers will be developed for the next session of the Prepcon under the auspices of the two working groups. These include papers on science needs, and on options for delivering compliance services and for ensuring effective participation of small island developing states. Other fisheries organizations will also be approached to provide information relevant to stock assessments in the convention area.
        
10. The on-going participation of France and the French territories in the Prepcon process appears secure for the time being. This will be facilitated through negotiations in the Prepcon over the Commission’s rules of procedure covering the participation of territories. These rules may well accommodate the demands and interests of the territories without undermining the convention.

From the viewpoint of FFC member states, the two key objectives of Prepcon are to ensure that there is a smooth transition to the new Commission and to ensure that Pacific island states play an active and meaningful role in both the Prepcon and the future regime. The convention establishing the Commission is regarded by them as a compromise, that reflects the different interests of the Pacific island coastal states and distant water fishing nations. In order that this Commission realizes its goal of managing and conserving the tuna stocks of the region it is important that there be no moves to further undermine the provisions of the convention. At the same time, it is recognized that all major players in the region’s fisheries need to participate in the regime if it is to be truly effective. For this reason the FFC has reluctantly agreed to engage in a further round of consultations with Japan in order to try and secure Japan’s participation. On the whole, Prep1 made a solid start to what will prove a complex and difficult process towards implementation of the Central and Western Pacific Tuna Convention.

Dr Sandra Tarte
Senior Lecturer, History/Politics Department, University of the South Pacific